No. 14732 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

VIOLETTE MOEN I 

Claimant and Respondent, 

DECKER COAL COMPANY, Employer, 

and 

EMPLOYERS MUTUAL LIABILITY INSURANCE 

COMPANY OF WISCONSIN, 

Defendant and Appellant. 

Appeal from: Workers1 Compensation Court 

Honorable William E. Hunt, Judge presiding. 

Counsel of Record: 

For Appellant: 

Crowley, Haughey, Hanson, Toole & Dietrich, Billings, 

Montana 

Randy Bishop argued, Billings, Montana 

For Respondent: 

Hoyt and Lewis, Great Falls, Montana 

John Hoyt argued, Great Falls, Montana 

-- 

Submitted: September 21, 1979 

Decided : DEC 14 1919 - 

Filed: DEC f <: :"; 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Employers Mutual Liability Insurance Company of Wisconsin, the insurance carrier for the employer, Decker Coal 

Company, appeals from a judgment of the Workers' Compensation 

Court entered on behalf of Violette Moen, the claimant for 

benefits due pursuant to the Montana Workers' Compensation 

Act. 

Mike Moen, decedent and husband of the claimant, was 

employed as an oiler by Decker Coal Company at Decker, 

Montana. On Saturday, November 1, 1975, the decedent was 

working overtime steam cleaning various pieces of heavy 

equipment. This was a task which was not part of his usual 

job. Superintendent, Delmar Bradway had the decedent steam 

cleaning a row of equipment during the morning. After noon, 

the only remaining employees left at the site were Bradway 

and the decedent. 

Bradway testified that he and the decedent operated the 

steam cleaner in the afternoon on the same equipment which 

had been cleaned that morning in order to clean the batteries. 

Although a union agreement with the Decker Coal Company 

contains provisions prohibiting supervisory personnel from 

doing the tasks of the rank and file members, Bradway testified 

that he operated the steam cleaner while the decedent drove 

an old Ford F600 truck on which the steam cleaner was mounted. 

When they finished the job, the decedent was assigned the 

task of draining the cleaner and storing the hoses. The 

work day terminated about 3:30 p.m. Bradway also testified 

that the decedent drove away in his pickup truck and did not 

report any injury or ill effects from working that day. 

The decedent visited briefly with James McCarthy, the owner 

of the grocery store and post office in Decker, Montana, sometime 

between 3:50 p.m. and 4:50 p.m. the same day but did not indicate 

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to McCarthy any ailments. About twenty minutes later the 

decedent again came to McCarthyls premises and asked McCarthy 

to drive him to Sheridan, Wyoming, some 35 miles away. McCarthy 

testified that the decedent looked pale and promised to take him 

as soon as he finished repairing a pump in his basement. 

The decedent did not wait but apparently drove himself to 

Memorial Hospital in Sheridan where he was admitted at approximately 

6:00 p.m. Upon admission the decedent related a history to the 

attending physician, Dr. William Williams, of having an abrupt 

onset of left anterior chest pain with pain radiating into the 

left arm at approximately 2:00 p.m., the same day. The decedent 

further indicated that the pain went to its peak intensity within 

ten to fifteen minutes and then continued until he presented 

himself at the hospital. An electrocardiogram was performed 

and findings were consistent with an acute anterior myocardial 

infarction. 

The decedent was put on a monitor and treated with medication 

until approximately 2:57 a.m., November 2, 1975 when his heart 

changed rhythm (arrhythmia) and after several electric shock 

treatments and medication, the decedent died at 3:35 a.m. on 

November 2, 1975. The cause of death was stated as an anterior 

myocardial infarction with cardiac arrest. No autopsy was performed. 

The decedent was 63 years of age. 

A claim for compensation was filed by the decedent's widow 

on September 27, 1976. The claim was denied by the appellant 

on the grounds that Moen's death was not causally related to 

his employment. A petition seeking a hearing before the Workers' 

Compensation Court was filed on August 31, 1977 and amended 

January 25, 1978. Pretrial conferences were held on ~eptember 

1, 1977, April 6, 1978 and July 13, 1978. After several postponements, the matter was heard on August 2, 1978. ~ollowing the 

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hearing, briefs were filed by both parties. On January 29, 

1979, the decision of the court was rendered with findings of 

fact and conclusions of law finding that Moen's death was 

causally related to his employment and holding appellant liable 

to claimant for benefits. 

The two issues presented on this appeal are whether the 

decedent suffered a compensable "injury" as defined by section 

39-71-119, MCA, and if so whether such injury arose "out of 

and in the course of his employment" within the scope of section 

39-71-407, MCA? We find that the first issue is dispositive 

of the case and reverse based upon the following reasoning. 

Section 39-71-119, MCA, states in pertinent part: 

"Injury - or injured defined. 'Injury' or 'injured' 

means : 

"(1) a tangible happening of a traumatic nature 

from an unexpected cause or unusual strain 

resulting in either external or internal physical 

harm . . ." 

There are two elements in the statute which must be met: 

" (1) there must be a tangible happening of a traumatic 

nature, and 

"(2) this must be shown to be the cause of physical 

harm." (To the worker.) Dumont v. Wickens Bros. Const. 

Co. (1979), Mont . , 598 P.2d 1099, 1108, 

36 St.Rep. 1471, 1482; Hurlbut v. Vollstedt Kerr Co. 

(1975), 167 Mont. 303, 538 P.2d 344. 

In explaining the first element of the injury formula, 

this Court has stated: 

"A tangible happening must be a perceptible happening, 

Webster's Third New International Dictionary. Some 

action or incident, or chain of actions or incidents, 

must be shown which may be perceived as a contributing 

cause of the resulting injury. This Court has found 

neuroses compensable, but a tangible, real happening 

must be a cause of the condition." Stamatis v. 

Betchel Power Corp. (1979), Mont. - , 601 P.2d 

403, 406, 36 St.Rep. 1866, 1870; Erhart v. Great 

Western Sugar Company (1976), 169 Mont. 375, 381, 456 

P.2d 1055, 1058. 

Regarding the causal element, the death must still be 

proven to be the result of a tangible happening of a traumatic 
nature. The claimant bears the burden of proving by a preponderance of the evidence that a tangible happening of a 

traumatic nature proximately caused physical harm, McAndrews 

v. Schwartz (1974), 164 Mont. 402, 412, 523 P.2d 1379, 1384, 

and must show more than the mere possibility that the happening 

caused the harm. Erhart, 169 Mont. at 380, 546 P.2d at 1058; 

Stordahl v. Rush Implement Co. (1966), 148 Mont. 13, 20, 417 

P.2d 95. If the evidence indicates a worker suffered a 

heart attack while - at work, rather than -- as a result of - work, 

no injury occurred under the statute. Ness v. Diamond Asphalt 

Company (1964), 143 Mont. 560, 564-65, 393 P.2d 43, 45-46. 

Applying this bifurcated test to the record in the present 

case demonstrates that the statutory requirements are not 

satisfied. Here there is no tangible happening of a traumatic 

nature. The only evidence going to the satisfaction of this 

requirement is a notation on the records of the hospital medical 

room indicating that the decedent's peak intensity of pain occurred 

at approximately 2:00 p.m. on Saturday, November 1, 1975. Alone 

this evidence is insufficient. 

The remaining evidence which respondent asserts as 

supportive of a valid claim goes to the collateral matter of 

aggravation of the decedent's condition and are not solid 

links forming a chain of events required by this Court in 

Erhart, supra. The testimony of Dr. Fletcher that the 

continued activity of the decedent lessened his chance of 

survival as well as the lack of proximity to a hospital are 

factors which may have aggravated the underlying myocardial 

infarction but they do not complete the chain of events. 

Claimant argues that several New Jersey cases are on point 

with the current case and that the courts there found the 

existence of a compensable injury. However, what claimant fails 

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to recognize is "[tlhe displacement of the unusual-exertion 

requirement in New Jersey by an essentially causal test . . ." 

Larson's Workmen's Compensation Law S38.64(b) at 7-185. 

Claimant's argument disregards Montana's independent requirement 

that a strain must result from "a tangible happening of a 

traumatic nature" in order to be compensable. 

"Not only must claimant show an unusual strain, 

but that the strain must result from a tangible 

happening of a traumatic nature. [Citations 

omitted.] In Love ----- v. Ralph's Food Store, 163 

Mont. 234, 516 P.2d 598, we stated that Jones [v. 

Bair's Cafe (1968), 152 Mont. 13, 445 P.2d 923;r 

and Robins [L Ogle (1971), 157 Mont. 328, 485 P.2d 

692,] made this rule clear. See, also, the earlier 

cases: Lupien v. Montana Record Publishing Co., 

143 Mont. 415, -0 P.2d 455; James v. - V.K.V. Lumber 

- Co., [I45 Mont. 466, 401 P.2d 2821, supra; Miller 

v. - Sundance Recreation, Inc., 151 Mont. 223, 441 

P.2d -~ 194." -. - Dumont v. Wickens Bros. Const. Co. (197 

Mont . , 598 P.2d 1099, 1108, 36 St.Rep. 

1471, 1483 citing Erhart, 546 P.3d at 1058. 

As we stated in Dumont and we reaffirm as applicable here: 

"Claimant must still prove that her husband's death was the 

result of a 'tangible happening of a traumatic nature,' which 

she totally failed to do." Dumont, supra. 

Moreover, these factors completely fail to satisfy the 

causation element of the formula. The record is devoid of any 

evidence that the heart attack occurred as a result of work 

within the meaning of Ness, supra. 

Since this Court finds no injury within the purview of 

section 39-71-119, MCA, we hold that the decedent did not sustain 

a compensable injury. 

Reversed. 

We Concur: 

Chief Justice 
Mr. Justice John C. Sheehy dissenting: 

The majority does not meet head on the basic fact 

situation established by the claimant on which the Workers' 

Compensation Court found in favor of the claimant. 

The facts as found by the Workers' Compensation Court 

include these: 

"That the testimony reveals that the decedent 

reported for work about 8:00 a.m. Saturday, 

November 1, and was assigned the task of steam 

cleaning engines and transmissions of certain 

heavy equipment operated by the employer. His 

regular duties for which he was employed were those 

of an oiler. The decedent was described as a good 

oiler and worker. That the job of steam cleaning 

was different from the job of an oiler. 

"That the task of steam cleaning was described as 

an unpleasant, dirty job which required one to 

drag around the steam hoses from one part of a 

machine or one machine to another. The steam 

cleaner wore rain gear and goggles for protection 

from getting wet and dirty. That the job was 

described as not being more difficult than the job 

of oiler. 

"That Delmar Bradway, Maintenance Superintendent, 

testified that the decedent worked at steam 

cleaning until about noon on November 1 then had 

lunch. He stated also that two mechanics who 

also were working overtime on November 1 were excused 

at noon because they wanted to go home. Apparently 

in the afternoon the only employees left at the site 

were Bradway and the decedent. 

"Bradway further testified that in the afternoon he 

and the decedent operated the steam cleaner to get 

steam off the batteries on the equipment. He said 

that he operated the steam cleaner while the deceased 

drove an old Ford F600 truck on which the steam cleaner 

was mounted. They finished the job and the decedent 

was assigned to the task to drain the steam cleaner 

and hang up the hoses. The work day, according to 

the record, terminated about 3:30 p.m. 

"That Bradway testified that the decedent signed 

himself off the job at 3:30 p.m. and drove away in 

his pickup truck and did not report any injury or 

ill effects from working on the job. He later saw 

the decedent standing by his pickup with the hood 

raised and again the decedent did not indicate that 

there were any ill effects from the job. 

"That James McCarthy, an employer of Peter Kiewit 

and Sons who also owns the grocery store and post 

office in Decker, Montana saw the decedent sometime 
between 3:50 p.m. and 4:50 p.m. on November 1, 

1975 in the yard at his store. The decedent and 

McCarthy visited as they did on many occasions in 

the past. According to McCarthy the decedent 

did not indicate that he wanted to see a doctor 

nor that he was feeling bad. McCarthy then excused 

himself and went to work on a pump in the cellar 

of his building. A short time later the decedent 

came to the door, knocked, and McCarthy came up from 

the cellar. The decedent asked McCarthy, a long 

time friend, to take him to town, which he had never 

done before; and McCarthy said that he would be with 

him in ten minutes, as soon as he was through with 

the task of fixing the pump in his basement. Twenty 

minutes later McCarthy saw the decedent. He looked 

pale and wasn't his usual self. 

"That the decedent apparently drove himself to Memorial 

Hospital of Sheridan County, Wyoming a distance of 

approximately 35 miles, where he was admitted at 

approximately 6:00 p.m. on November 1, 1975. Upon 

admission the decedent gave a history to the attending 

physician, Dr. William Williams, of having an abrupt 

onset of left anterior chest pain with pain radiating 

into the left arm at approximately 2:00 p.m. November 

1, 1975. The deceased further indicated that the pain 

went to its peak intensity within 10 to 15 minutes 

and then continued until he presented himself at the 

hospital. An electrocardiogram was performed and 

findings were consistent with an acute anterior myocardial 

infarction. 

"That the decedent was put on a monitor and treated 

with medication until approximately 2:57 a.m. 

November 2, 1975 when his heart changed rhythm and, 

after several electric shock treatments and medication, 

the decedent died.. . . 

"Dr. Donald G. Fletcher, a physician and surgeon 

who practices in Conrad, Montana, testified on behalf 

of the claimant during which testimony the following 

facts were established: 

"a. An anterior myocardial infarction is 

the most severe type of myocardial infarction 

because the left anterior coronary arteries 

supply blood to roughly half the heart. 

"b. That the decedent suffered the actual 

attack at the time the pain reached its peak 

intensity which is approximately 2:00 p.m. 

according to the history given to Dr. Williams 

on November 1, 1975. The hospital records 

regarding this history have been stipulated 

into evidence. 

"c. After suffering a myocardial infarction 

at approximately 2:00 p.m. November 1, 1975, 

the decedent's continued employment activities, 

which, according to Delmar Bradway, consisted 

of driving a 1963 or 1964 F600 Ford truck, 

without power steering, and with a four speed 

manual transmission with clutch, from one scraper 
to another for approximately one and one 

half hours, and thereafter driving himself 

in an automobile to a hospital, a distance 

of approximately 35 miles, aggravated the 

existing, underlying myocardial infarction. 

The said aggravation consisted of exertion 

caused by the above activities which placed 

an unusual demand on the decedent's heart 

thereby causing further muscle damage to the 

heart, making the heart more susceptible to 

arrhythmia or anoxic fibrillation. The 

employment activities of the decedent after 

2:00 p.m. November 1, 1975, and exertion caused 

by those activities reduced the decedent's 

chances of living. 

"d. That prompt first aid and medical attention 

as soon after the onset of attack as possible 

is the most important time for treatment of this 

kind of injury. Such treatment consists of 

immediate hospitalization, the administration of 

oxygen, medication, monitoring, and placing the 

patient in complete physical and emotional rest. 

"That based on the testimony of Drs. Fletcher and Williams 

the activities engaged in by the decedent after the 

onset of the symptoms of a myocardial infarction 

probably were a contributing factor in causing the onset 

of the arrhythmia that led to his death. 

"That although the strain of the activities engaged in 

by the claimant at the time of the onset of symptoms 

of the myocardial infarction may not have been unusual, 

the activities and the results of such activities and 

the resulting myocardial infarction were unusual." 

The foregoing findings of the Workers' Compensation Court 

demonstrate that the claimant, Violette Moen came to this Court 

backed by the Workers' Compensation Court in her claim that 

the continued work exertions required of her husband after 

the onset of his infarction, the strain to which he was put 

thereafter, and the driving of the automobile necessary to 

seek medical attention, were tangible happenings of a traumatic 

nature from an unexpected cause or unusual strain that resulted 

in internal physical harm. As a result therefrom he suffered 

death. Her case fits absolutely within the definition of an 

injury as set out in section 39-71-407, MCA. 

The majority opinion contains no effort to explain away 

or set aside the findings of fact of the Workers' Compensation 

Court as we have set,them forth above. In fact they could not 
be set aside, because findings of the Workers' Compensation 

Court enjoy the protection of Rule 52, Mont.R.Civ.P., and 

must stand unless clearly erroneous. When substantial 

evidence supports the findings of Workers' Compensation Court, 

the appellate court cannot overturn them. Dumont v. Wickens 

Bros. Const. Co. (1979), Mont. , 598 P.2d 1099, 1106, 

36 St.Rep. 1471, 1480. We followed that rule recently in 

Stamatis v. Bechtel Power Co. (1979), Mont . , 601 

P.2d 403, 36 St.Rep. 1866. 

I would affirm the Workers' Compensation Court in this 

case. 

F. 

Justice 

J, 

7 

1. n 

Justice